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U.S. Detainee Policy Comes Under Fire

The Bush Administration's policy of dealing with terrorist detainees has suffered several blows recently. But despite public criticism and some legal setbacks, the administration is sticking to its controversial policies. How does the terrorist detention look six years after the attack that set those policies in motion?

Right after al-Qaida crashed two airplanes into the World Trade Center on September 11, 2001, President Bush made it clear that he would not treat terrorists as mere criminals. "The deliberate and deadly attacks which were carried out yesterday against our country were more than acts of terror. They were acts of war," the President said.

In making such a declaration, Mr. Bush set in motion a set of new policies that put terror suspects picked up at home or abroad in a legal limbo where they were neither prisoners of war nor criminal defendants. They were slapped with a new label of "unlawful enemy combatant" that administration lawyers said allowed the suspects to be kept in custody indefinitely with no legal avenue available to challenge their detention.

Policy Critics

But those policies, coupled with the revelation of CIA secret prisons and allegations of mistreatment or torture of detainees in military or intelligence custody, sparked heated criticism at home and abroad. The Bush Administration was accused of turning its back on principles of American justice by denying detainees any legal protections or safeguards against abuse.

Even former Secretary of State Colin Powell, in a recent appearance on NBC's "Meet the Press," called for the Guantanamo Bay prison to be closed and its inmates transferred to civilian custody.

"Guantanamo has become a major, major problem for America's perception as it's seen, the way the world perceives America. And if it was up to me, I would close Guantanamo not tomorrow, but this afternoon. And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system," said Powell. "The concern was, 'Well, then they'll have access to lawyers, then they'll have access to writs of habeas corpus.' So what? Let them. Isn't that what our system's all about?"

New Rules for a New War?

John Yoo was an early architect of the Bush administration's detainee policy. He tells VOA that while the administration believes a new kind of war requires new legal rules, there has been opposition to those rules from judges who believe captured terrorists should be treated the same as criminals.

"I think there's always been two different legal systems. There's a legal system that governs civilian matters, and then there's a legal system under the laws of war. And it's true that, historically in the past, we generally only applied the laws of war to conflicts with other nation-states. What has made 9/11 different is that you have an enemy who is not a nation-state. But I don't think that just because they're not an enemy nation by definition you have to apply the criminal laws," says Yoo.

But Eric Freedman, a professor of law at Hofstra University and an attorney for some of the detainees held at the U.S. base at Guantanamo Bay, Cuba, says there is no need for new rules in the war on terror.

"If the legal advisers to the government had been giving legal advice, rather than simply trying to rationalize what the president wants to do, they would have told him exactly this. They would have told him, 'Look, Mr. President, of course you can call it a war on terror, like you can call it a war on drugs or a war on inflation or a war on energy waste or whatever the hell you want. But if you have a war on drugs, you still every time you capture a member of the Colombian drug cartel, you put them on trial,'" says Freedman.

Court Intervention

In the latest legal ruling, a U.S. appeals court said Ali al-Marri, a U.S. resident who has been held in a military jail in South Carolina as an enemy combatant for four years, must be turned over to civilian custody and either released or put on trial. The ruling does not directly affect the detainees held outside the United States, such as those at Guantanamo Bay.

Eugene Fidell, president of the National Institute for Military Justice, says the administration's detainee policies are beginning to fall apart under legal and political challenge.

"The systems that the government has put into place -- and it's more than one system; it's the military commissions, it's the Combatant Status Review Tribunals, it's holding people like Mr. al-Marri for years and years -- have repeatedly proven to be extremely weak, even when Congress has intervened to try to fix them," says Fidell. "So I don't think it's simply a question of fraying around the edges. I think this is a question of the wheels falling off the bus or the bus being very close to falling off the cliff."

Glenn Sulmasy, professor of international law at the Coast Guard Academy, believes a special court should be created to deal only with terrorist cases. "For this hybrid war, for this hybrid warrior, we need a hybrid court. We need a hybrid court apparatus, a homeland security court, if you will, or an international terrorist court that we would use, a structure that would be used to properly detain and adjudicate that would provide and afford human rights protections, afford some elements of due process, but not the same as would be provided U.S. citizens under the constitution," says Sulmasy.

John Yoo, who now teaches law at the University of California at Berkeley, believes that while the al-Marri ruling is a setback for administration detainee policy, the policy will survive the scrutiny of higher courts, including the U.S. Supreme Court.

"The decision does set back the detainee policy if it were to go into effect. You know, again, this court's decision can be appealed at least twice. So it might only be a temporary setback rather than a permanent change," says Yoo. "So I'd say right now, until there's a final word from the entire court of appeals and then the Supreme Court, detainee policy doesn't have to change at all."

White House spokesman Tony Snow says the Bush Administration will appeal the al-Marri ruling to the full appeals court and up to the Supreme Court, if necessary.

This story was first broadcast on the English news program, VOA News Now. For other Focus reports click here.